Judge rules for Enbridge over state in Line 5 tunnel suit

A sign in the U.P. supporting Enbridge's Line 5 tunnel | Susan J. Demas

Enbridge Energy, the Canadian oil company at odds with Gov. Gretchen Whitmer over its Line 5 oil pipeline and a proposed underwater tunnel to house the aging pipes, has won a Court of Claims lawsuit against the state.

The decision from Judge Michael Kelly was announced Thursday afternoon. In the ruling, Kelly states that the legislation signed by former Gov. Rick Snyder to build a tunnel under the Straits of Mackinac will stand, as the court will not hold up Attorney General Dana Nessel’s legal opinion that the agreement was unconstitutional.

“The Court’s view is shaped by the principle that statutes are presumed to be constitutional,” Kelly’s decision reads, adding that the court uses “extreme caution” when deciding whether a law is unconstitutional and cannot declare it as such if “serious doubt exists.”

Enbridge announces lawsuit, Nessel responds: ‘We’ll see you in court’

“We are pleased that the Michigan Court of Claims ruled in our favor,” Enbridge spokesperson Ryan Duffy wrote in an email. “… Enbridge remains fully committed to the Great Lakes Tunnel project. We continue to believe the tunnel is the best solution for Michigan and that Line 5 can continue to be safely operated during the period while the tunnel is being constructed. And we are committed to build it.”

The lawsuit had been filed by Enbridge as a challenge to Whitmer’s decision to block construction earlier this year of the tunnel, which had hinged on Nessel’s legal opinion.

Gretchen Whitmer and Dana Nessel
Gov. Gretchen Whitmer and Attorney General Dana Nessel in Clawson, March 18, 2019 | Andrew Roth

“The governor is committed to protecting the Great Lakes,” Whitmer spokesman Tiffany Brown said. “The administration clearly disagrees with today’s ruling, and we plan to appeal.”

In a statement, Nessel said that her office is “more resolved than ever to continue this fight on behalf of the people of Michigan” and “will appeal this decision.”

Snyder, a Republican, had negotiated last-minute legislation during a Lame Duck session in December 2018 that authorized constructing a tunnel around the Line 5 pipeline. The terms of the legislation hindered the ability of his Democratic successor to reverse the agreement, seeing as one of Whitmer’s central gubernatorial campaign promises was to decommission Line 5.

Snyder says he’ll sign Line 5 bill, but stays mum on other Lame Duck action

State House Speaker Lee Chatfield (R-Levering) tweeted about the ruling shortly after it was announced, praising it as “great news for thousands of Michigan’s families & our statewide economy.” The tunnel in question would be built in Chatfield’s district. 

House Speaker Lee Chatfield, May 30, 2019 | Andrew Roth

The Michigan Environmental Council, a coalition of state organizations opposed to Line 5 and Enbridge’s tunnel plan, opposes the court ruling.

“We are tremendously disappointed that the Court of Claims allowed this Lame Duck law to stand, and look forward to seeing the case go to the Michigan Supreme Court,” Policy Director Sean Hammond said in a statement.

“Despite this ruling, we ask Gov. Whitmer and AG Nessel to continue to use every legal tool at their disposal to end the massive risk to our Great Lakes posed by Line 5 as soon as possible,” Hammond added.